Taylor v. Cate, 2014 WL 6463065 (C.A.9),

Several judges on the 9th Circuit who have never tried a criminal case apparently are completely unaware of the cost and injustice of some of their opinions. The author of Taylor is in that group.

Taylor was convicted in state court of shooting and killing a store clerk in a two-man robbery.  The prosecutor could not establish which of the two men did the actual shooting and informed the jury the non shooter was an aider and abettor and as guilty as the principle.  The jury found Taylor was the shooter, and the court sentenced him as the principle.

Somehow, the DA and police subsequently discovered Taylor was not the shooter and the jury had made a mistake.  This commendable prosecutorial investigation was administratively opened and eventually the prosecutor and trial judge agreed to a reduced sentence. Taylor filed this procedure for review in the California Court of Appeal on grounds of erroneous sentencing, and on denial by the court he sought review in the California Supreme Court  The Supreme Court in its order referred only to resentencing, not the grounds Taylor alleged as “not guilty” as a principle. Remanded to the Court of Appeal.

The California Court of Appeal on remand affirmed the judgment of the trial court; the California Supreme Court denied review; the federal magistrate denied the petition for habeas corpus in district court.  The 9th Circuit panel granted the petition in an incomprehensible opinion.  When 9th Circuit judges want to reach their ideological opinions, they find their way and always for the defendant.  Taylor v. Cate is deja vu all over again.

According to the 9th Circuit majority panel, the California Supreme Court order only applied to resentencing, not Taylor’s claim on the merits that the jury had not found him guilty as an aider and abettor, avoiding AEDPA, and on remand the California Court of Appeal held only the resentencing was approved. Now the panel could review de novo.

What better and fairer resolution of sentence reduction could be found anywhere except in the 9th Circuit?  The panel ruled the jury had never convicted Taylor as an aider and abettor and he must be retried.  In the meantime, the other robber was found not guilty. This case was tried in 1987 and now both men are free unless the prosecutor can find witnesses to retry Taylor as an aider and abettor. He would be sentenced, if found guilty, to the same sentence the DA recommended and the trial court approved.The defendant was found guilty as a principle but the sentence is higher than for an aider and abettor.  Both are treated equally for purposes of conviction, and Taylor should be sentenced as an aider and abettor. Which the trial court did.

The majority panel writes that the sentencing error is not harmless and deprives the defendant of a trial as an aider and abettor under the Sixth Amendment and Due Process Clause.  The author of the panel cited a 9th Circuit case reversed by the Supreme Court in support of her decision.

The dissent seeks an equitable decision.  If the DA cannot re try this 1987 case because witnesses cannot be found, both defendants go free.  What an injustice. The trial court understood.  The DA was oriented to justice in agreeing to a reduced sentence.  All the California courts and the federal court agreed. En banc time, and if denied, petition for cert. alleging another 9th Circuit error to add to their record.

Mayes v. Premo, 766 F.3d 949 (9th Cir. 2014)

When  the Supreme Court decided Batson v. Kentucky the Justices never eliminated the AEDPA provisions requiring federal deference to state courts on habeas corpus.  Each time the Supreme Court reverses the 9th Circuit the Justices verbally lash refusal of several federal judges who fail to adhere to AEDPA.  And in each of these reviews the Court imposes stricter provisions than before.  In Mayes v. Premo the majority of the 9th Circuit panel correctly cites its role as federal habeas corpus judges: uphold the state trial court finding that the prosecutor did not excuse black jurors on racial grounds unless the record is clearly wrong.

But one judge In Mayes dissents, ignores AEDPA, and reviews the finding of the trial court de novo. In other words, he just makes up his own mind and substitutes his own judgment.  The trial judge specifically upheld the defense objection to the prosecution peremptory challenge of a potential black juror; the Oregon Court of Appeal upheld the trial judge; the Oregon Supreme Court denied review; the U.S. district court judge denied the habeas corpus petiton.  In other words, this judge ignores 12 judges with his aberrant dissent and disregard of the law.

The Batson case has made every case involving a black or Hispanic defendant a ground for appeal if the prosecutor excuses a minority juror. The dissenting judge in Mayes, who has never tried a criminal case, apparently thinks he can impose his judgment from reading a cold record. A trial lawyer excuses jurors for a variety of reasons, regardless of race.  The juror’s demeanor, their voice; the way they answer questions; the inconsistency of their answers to questions in court or their pre trial questionnaire; or just plain dislike of a potential juror.  None of this shows up on a cold appellate record.  Add to that the Supreme Court comment that the trial judge is the best observer of voir dire.  The  dissent shows complete disregard for these factors.

The amount of time taken to voir dire the jury is now incredible, and even though the evidence consists of overwhelming evidence of guilt, if one juror is arguably excused wrongfully, this judge will reverse. His decision in this case is not the first time he and others judges search the trial record in a quest for error.

Glebe v. Frost, 2014 WL 6088827 (U.S.) Reversing 9th Cir.

Another reversal of the 9th Circuit, and we are only two weeks into the current term of the Supreme Court. The Justices have already reversed five cases.  The Glebe decision is per curiam by (all members of the Supreme Court).

The defendant Frost began a series of robberies eleven your ago along with other men. At the trial he admitted participation in the robberies. Tried and convicted of the robberies and other related crimes, he appealed to the Washington Supreme Court who affirmed the conviction.  Frost filed a habeas petition in federal court and was denied.  On appeal to the 9th Circuit; the panel affirmed the order but on en banc hearing: reversed.

Frost claimed the trial judge would not let him argue failure of the trial court to allow him to argue the state did not establish corroboration of the accomplices who testified against him, and that he committed the robberies under duress.  How you can argue the absence of corroborating witnesses to committing the crime and contend you were under duress is a good question.

According to the 9th Circuit, the trial court erred in failing to allow counsel to argue inconsistent defenses. On cert., the Supreme Court did not address this question because the 9th Circuit en banc panel used their own precedent to determine whether AEDPA had been applied without any “clearly established” Supreme Court law as fully discussed in the recently decided Lopez case. The Supreme Court informed the 9th Circuit (again) it cannot rarely on its own precedents.

But the main issue revolved around the trial court decision whether refusing to allow inconsistent defenses constituted “structural error.”  Most Constitutional errors warrant reversal only if the the error is harmless.  Structural error “must infect the entire trial process and render it unfair.” In reviewing the trial record the Supreme Court concluded no infection of the entire trial process rendered it unfair, particularly when testified to his commission of the crimes (but under duress).


Wood v. Moss, 134 S.Ct. 2056 (reversing 9th Circuit)

Although the Supreme Court decided this case in May, 2014, the recent November 2014 elections remind us the Presidential election remains only 2 years away, and  events similar to those in Wood v. Moss, which occurred at the time of President Bush’s election, may recur.

President Bush was campaigning for re election in Oregon and scheduled to spend the night in a small town.  As he walked through the streets accompanied by Secret Service Agents, two groups followed him.  One group was challenging the President for re election, and another group supporting him. Secret Service Agents were cooperating with local police for crowd control and trying to keep the distance between the two groups and the President roughly the same.  At the last minute, the President changed his plans and entered a restaurant.  The Secret Service Agents re positioned the two groups in their distance from the President.

The plaintiffs alleged a First Amendment violation of “viewpoint discrimination,” contending the Agents discriminated against them because their location was disabling them from seeing the President, as distinct from the supporting groups. Incredibly, the 9th Circuit agreed, not only on the viewpoint discrimination issue but also denied the agents qualified immunity allegedly having violated  “clearly established” federal law.

A unanimous Supreme Court reversed, holding that the Agents could not necessarily equalize the distance between plaintiff’s group and the supporting group, particularly when the President changed his route without notifying them As to the qualified immunity argument,  the Justices knew of no law “clearly established” under the circumstances and unanimously reversed this absurd 9th Circuit opinion.


U.S. v. Apel, 134 S.Ct.1144 (2014) reversing (9th Circuit

Ninth Circuit reversed again.  Although defendant Apel was decided by the Supreme Court in February, 2014, and the remand issued immediately, the 9th Circuit did not get around to finally deciding the case until September, 2014. Even then the panel had to amend its opinion for reasons unclear.  The Supreme Court had basically reversed the 9th Circuit opinion and all the panel had to do was affirm the district court judgment against Apel. /wich they did in one paragraph.  U.S. v. Apel, 767 F.3d 800 (9th Cir. 2014).

The case was factually uncontested. The 9th Circuit had held federal statute 18 U.S.C. 1382 (prohibiting civilians from entering a section of a military base) inapplicable to Apel who had been repeatedly informed his conduct (throwing blood at a military sign and walking on prohibited areas) was unacceptable. The Supreme Court merely held military property is under the jurisdiction of the commander of the base and he was entitled to prevent people from committing misconduct. The Supreme Court dismissed the argument that the military had allowed an easement for civilian traffic qualified as limited federal jurisdiction.  Unanimously reversed.

Ryan v. Wood, 135 S.Ct., 21 (2014) reversing Wood v. Ryan, 759 F.3d 1076

The 9thCircuit has used every conceivable device to reverse state court death penalty decisions.  When unable to find any legal error on collateral review, the panel invokes “ineffective assistance. of counsel.”  The Supreme Court decision in Martinez v. Ryan permitting ineffective assistance challenges to post conviction counsel offered the 9th Circuit another opportunity for reversal.  But Wood v. Ryan, a 2-1 decision, exceeded all expectations in any death penalty case.

A state of Arizona jury found Wood guilty of first degree murder and sentenced him to death.  After all the customary delay incurred by the 9th Circuit on federal habeas, the panel ran out of excuses. The Arizona judge signed Wood’s death warrant, and the State scheduled an execution date.  Wood filed a petition seeking a stay of execution citing First Amendment grounds.   Yes, free speech, freedom of religion, free press and assembly forbade execution without a hearing.  According to defense counsel, Wood was entitled to know what drugs the state intended to use. The court granted the stay!

The dissenting opinion characterizes this argument as ” novel.” No, it is not novel.   There are far better denigrating words to describe this absurd tactic.  It took the Supreme Court 24 hours to vacate this complete departure from reason.  Worse yet, it adds to the 9th Circuit reversal record now at an all time high.

In succession, another 9th Circuit decision was reversed by the Supreme Court decided even before the new term began in October.   And on the opening day of the new term the Supreme Court reversed the 9th Circuit again in a per curiam opinion criticizing the appellate court for “time and again” refusing to fellow precedent. Then, one week later, the Supreme Court granted two more certs. from the 9th Circuit.

Clabourne v. Ryan, 745 F.3d 362 (9th Cir. 2014)


Another death penalty case decided by 9th Circuit citing the Supreme Court decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012), a case Justice Scalia predicted would add to the chaos of federal courts of appeal.  Clabourne is an example of that foresight in this  1982 conviction. Martinez permits an inmate to allege ineffective assistance of counsel on post conviction proceedings if the state disallows this defense on appeal.

As usual, the facts are brutal and warrant the death penalty.  Clabourne and two of his friends invited a woman to their house to serve drinks.  Upon her arrival, Clabourne raped the woman, stabbed her, and then strangled her.  An autopsy revealed numerous puncture wounds on the body of the victim.  In addition to several witnesses who offered confirming testimony implicating Clabourne, the prosecution introduced a complete confession to a deputy sheriff.  The jury voted the death penalty.

The Arizona Supreme Court reversed the sentencing on grounds of ineffective trial counsel and remanded for resentencing. The judge sentenced the death penalty again and the state supreme court affirmed. At a federal habeas proceeding the district court denied the Clabourne petition alleging ineffective representation of counsel during remand for resentencing for failure to present additional medical evidence and not objecting to the confession (Miranda) introduced at the original trial. Clabourne appealed to the 9th Circuit.

After conceding that a previous 9th Circuit opinion (Deitrich v. Ryan) was inconclusive under Martinez, the panel rambles on about what standards should be used for the Martinez case under an ineffective counsel Strickland claim.  The panel finally decides to remand this 1982 case again after discussing the Miranda issue.  The law on Miranda had changed after the original trial and the panel held the resentencing was a new trial and the decision should be made under the new Supreme Court case.

Comment: Justice Scalia was right. Martinez will make a shambles of federal corpus already in place at the 9th Circuit.  Resentencing is not a trial.  it is only the penalty phase.  This case will remain in the court forever.


George v. Edholm, 752 F.3d 1206 (9th Cir. 2014)

Search &Seizure: The facts in this case are disturbing because of the body part searched, and therefore the discussion is brief. Police officers arrested George, and when they took him to a hospital for a strip search they observed a bag containing white powder resembling cocaine emerging from his rectum   Concealing a bag in the rectum is a common practice among drug addicts and dealers. Based on George’s conduct, an issue arose whether he was experiencing a possible epileptic seizure, but this is a customary diversion tactic among drug users, and police do not ordinarily believe this ruse.  Eventually the doctor at the hospital examined George and used a forceps to remove the bag containing cocaine. The doctor testified a rupture of the bag would result in death.

According to the author of the 9th Circuit opinion, who wrote an extensive discussion of the testimony in depositions and discovery (a civil rights suit, not a criminal prosecution) as though he were cross examining the officers and the doctor, he found some discrepancies. (he called them “backtracking”) and that was enough to deny defense motions for summary judgment.  This author, who has never tried a criminal case, and does not realize officers cannot remember every detail of an arrest, found the anal search by the doctor non consentual and unreasonable under the Fourth Amendment.

The author ignores the possibility of a death –  inducing rupture of the cocaine and informs the doctor and the police how to do their job: do nothing and wait a couple days until the addict moves his bowels; or dies. Characterizing rectal searches as violative of the Fourth Amendment, the author says that in the absence of consent, just wait and see whether the suspect ruptures the bag and dies.

Note: this is the same judge who has rarely voted for a death penalty case and a dissenting judge in Henry v. Ryan, 2014  WL 4440435- an unrelated case now 28 years old. The procedural posture of Henry is preposterous.


Dariano v. Morgan Hill Unified School Dist., 767 F.3d 764 (9th Cir 2014

In the Morgan Hill case, during a Cinco de Maya observance day, several students arrived at school with American flags imprinted on their shirts.  Mexican students confronted them and demanded to know why Mexican colors could not be worn, and alleged the students were racists.  Apparently there was some other friction among students but no disruption or physical altercations occurred.

Informed of the disturbance, the principal called in the flag wearing students and told them to remove the shirts or turn them inside out.  The students refused and were sent home. Their parents filed a lawsuit alleging civil rights claims. In an amended opinion, the 9th Circuit panel rejected the litigation on all grounds and denied a rehearing.  A rehearing en banc was also denied.  Only three judges dissented from an en banc hearing.

The principal was obviously concerned because the campus had been the scene of Mexican gang fights.  But no Mexican student was reprimanded for threatening students and no punishment levied.  The students causing the disturbance were free do so. The solution: cancel any Cinco de  Maya days.

The 9th Circuit panel cited the seminal case of Tinker v. Des Moines Independent Community School District.  Students were allowed the practice of shirt wearing slogans as long as no disruption occurred or was fomented.  The panel cited Confederate flag cases holding the incitement was indigenous to slavery and disallowed this attire. These cases hardly compare to wearing the American flag.

The courts in other cases have used the “heckler” veto when onlookers elect to shout down the speaker.  This conduct compares equally to Morgan Hill  when Mexican students threatened the flag wearers who allegedly angered them.  The dissenting judges cite these cases to the indifference of the panel and judges denying a rehearing.

Cert Time.

Note: During the war in Iraq the State of California placed an American flag on a freeway overpass.  Later, someone also placed a flag on the overpass complaining about U.S. intervention.  State personnel removed the non American flag and, unsurprisingly, were sued by those who sought the right to fly the removed flag.  As a result of a 9th Circuit decision, the State had to remove the American flag.The American flag had to be removed, said the 9th Circuit panel, unless other flags were allowed.  “Viewpoint discrimination” said the panel. The AG did not seek cert.

In tracking the 9th Circuit for the last five years it is obvious that a liberal ideology permeates their opinions. Could students wear St. Patrick shirts; Christopher Columbus shirts; Jesus Christ shirts? As the dissent points out, why did the principal call in the students wearing American flags on their shirts instead of those who were threatening them or demanding Mexican flags? The hecklers won. Apparently the American flag is meaningless in the 9th Circuit.

Thornton v. Brown, 757 F.3d 834 (9th Cir. 2014)

“Today, a panel of our Court [9th Circuit] disregards ‘the strong considerations of comity’ between federal courts and the States, grasping power for itself where it is difficult to imagine that  . . . a State has a stronger interest; ” (citing  Preiser v. Rodriguez, 411 U.S. 475 (1973). In this quote written by a judge in the Thornton dissenting opinion, he adds that “the majority frustrates the State’s sovereign power to punish offenders under federal habeas corpus.” What is he talking about?
This decision is not the first time the 9th Circuit has usurped the power of state courts to manage criminal cases.  Repeatedly reversing decisions of state supreme courts by avoiding the Congressionally approved Antiterrorism and Effective Death Penalty Act of 1996 (28 U.S.C. 2254), the 9th Circuit has worked havoc on a system of federalism designed to narrow federal court authority in reviewing state cases rather than expanding it.
The facts of this case:  An inmate of a California prison, convicted under sex violation laws, challenged statutorily mandated parole conditions requiring him to wear a device monitoring his location during the length of parole. Instead of filing habeas corpus corpus, he filed a complaint under 42 U.S.C. 1983, the misused federal civil rights law, to enjoin the parole condition. In a dissertation on the federal law of remedies, the court panel majority discussed under what conditions an inmate could invoke 1983 instead of habeas and concluded the statute does not prohibit federal jurisdiction as long as the complaint seeks an injunction and not revision of either his sentence or money damages.

As the dissent points out, using 1983 avoids the limitations of 28 U.S.C. 2254 and allows attorney fees as well. The dissenters (there are several) focus on the underlying issue of federalism because of repeated attempts by some 9th Circuit judges to continue overruling state supreme court cases on habeas corpus   To avoid the limitations imposed by 2254, completely absent from this civil case, (and to finesse the death penalty in other cases), counsel for Thornton decided to try another route.  Section 1983 avoids federal limitations imposed on federal courts by the Supreme Court on state parole cases, the Fourth Amendment, and the requirement of state exhaustion before an inmate applies for a federal remedy.

Cert. in Thornton (absent rehearing) should be a certainty. This case was decided in July 2013 and amended in February 2014.The Governor has taken no action to file cert.in the Supreme Court. The Attorney General has done nothing either.